ISSN: 1198 3655

Undocumented Migrants In Germany And Britain: The Human “Rights” And “Wrongs” Regarding Access to Health Care

Abstract

Increasing irregular immigration into Western Europe and the status of the rising numbers of undocumented migrants are policy challenges requiring attention and action, particularly from a human rights perspective. In terms of international human rights law, the rights of undocumented migrants, including the right to health, are protected by several conventions to which EU member states such as Germany and Britain are party. Current political discussion and policy regarding irregular migration, however, centre mainly on policing and return programmes with little attention to the human rights of undocumented migrants - including the right to health. This paper explores the gap between Germany and Britain’s obligations to respect the right to health of undocumented migrants and access to health care for this group. It will be shown that state involvement in facilitating access to care is obstructive and falls short of international human rights’ standards to respect the right to health. An inevitable result will be increasing morbidity among undocumented migrants and the perpetuation of health inequalities.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 1 of the Universal Declaration Of Human Rights.

In Western Europe, each year thousands of migrants either cross borders, or decide to live and work in EU countries without official authorisation. They now form a new underclass of “undocumented” or “irregular” migrants whose main aim is to improve their prospects in Europe. Many risk their lives to do so. Between 300,000 to 500,000 migrants for example, try to gain access to “Fortress Europe” yearly via the Straits of Gibraltar1 . For those surviving such perilous journeys, or those entering legally but deciding to settle or work without authorisa-tion, their human rights are usually sacrificed in the process. This appears entirely inconsistent with the human rights obligations of European countries and the strong commit-ment to these rights pledged by the European Union (EU). This paper examines this issue by focussing on the realisation of the right to health of undocumented migrants in Germany, and Britain. The central question addressed here is to what extent is the inalienable right to health of undocumented migrants being respected by these EU states? This question will be explored firstly, by looking at access to health care for this group in the selected countries and secondly, by discussing this access and health care provisions in terms of the international human rights standards regarding the right to health.

Germany and Britain offer useful comparisons on the basis of their migration histories. Both experienced solicited economic immigration in the post-war period to fulfil labour shortages. However, Britain’s migrants were colonial workers and as such they were citizens with certain privileges. Germany’s labour migrants, however, were viewed as temporary guest-workers with severely restricted rights. Both countries have tried to restrict immigration but their approaches to ‘policing’ migration are in many ways different and so too are their health systems. Both of these facts have implications for the life experience and health care for undocumented migrants.

The paper begins with a discussion of who exactly undocumented migrants are by cataloguing the various types of migrants constituting this group. The various reasons why the population of undocumented migrants is increasing in Europe are examined as well as their subsequent loss of human rights, including their right to health. This is followed by an overview of the international standards, embodied in human rights law, on the right to health.

In the ensuing case studies on Germany and Britain, an examination and discussion of access to health care provisions for undocumented migrants is embedded in an overview of key developments in the respective countries efforts at combating ‘illegal’ immigration. This contextual information is considered instructive for several reasons. Firstly, it provides an insight into the various states’ ethos regarding migration and tolerance of migrants. Secondly, it offers some indication of their general approach to facilitating the access to human rights by undocumented migrants. It is a central position of this paper that an understanding of both the physical and psychological health status of undocumented migrants cannot be separated from these contextual factors.

1. Undocumented Migrants: Who Are They And Why Are They Here?

Statistics suggest that at the start of the 21st century, one out of every 35 persons around the world is an international migrant2 (IOM 2003:a:1). The term “migrant” refers in general to a person who takes up residence temporarily or permanently outside her or his country of origin, more specifically the term is applied to migrant workers3 (United Nations NGLS 2002). Equally staggering is the unprecedented increase in undocumented or irregular migration. Although reliable data is not readily available, estimates are that between 120,000 to 500,000 enter the European Union by irregular means annually4 .

This section focuses on firstly, the different groups constituting undocumented migrants and secondly, the various factors contributing to increasing irregular migration flows. Several explanations have been advanced as causes for this migratory pattern. These range from economic and labour trends and policies in Europe (LeVoy & Verbruggen 2004) to conceptual and theoretical shortcomings in migration policy and theory (Kostakopoulou 2004). It is argued, however, that irregular migration is a logical outcome of three complex and inter-related processes: the failure to introduce comprehensive labour migration policies in an age of increased economic need in Europe and growing global migratory pressures; the unchecked forces and effects of globalisation; and the dismantling of the refugee protection system as the EU seeks to harmonise its asylum and immigration policies. The discussion will further highlight a parallel development – the increasing vilification of migrants, particularly undocumented migrants. One result of this disturbing phenomenon is a lack of protection of their human rights, a fact that is clearly demonstrated in the lack of respect of their human right to health.

1.1 . Who Are Undocumented Migrants?

A wide spectrum of terms describing the migratory movements producing undocumented migrants is reflected in the literature on the subject and includes: “illegal migration”, “clandestine migration”, “undocumented migration” and “irregular migration”. The increasing number of people living in the European Union without legal documents or entering in an irregular way, especially through trafficking or smuggling, has provoked restrictive or punitive reactions from governments and has aroused hostile xenophobic sentiments and behaviours among national populations. As Düvell & Jordan (2002a:15) observe, irregular migration is now being seen as “a threat to the living standards and cultures of the citizens of the rich, predominantly white First world states.” What has become abundantly clear in the post September 11, 2001 period, is that migrants and migration in general have become increasingly associated with security concerns5 , a situation further exacerbated by the links between trafficking, smuggling and international organised crime.

People who have entered the country with regular documents, but who stay longer than the documents permit.

Immigrants who have lost their residence and/or work permit, either because they cannot renew it or they have lost it for some other reason.

Refugees with short term residence permits who lost their permits, but still stay in the country.

Migrants who have been released from deportation centres because they could not be deported.

People who have entered the country in an irregular way - for example through smuggling or trafficking6 .

Asylum seekers who have exhausted the asylum procedures and have eluded arrest or deportation.

Stateless persons who have had great difficulties in obtaining official documents.

Undocumented migrants can also be considered in the terminology of Gosh (1998) as being in an ‘irregular situation’. That is, they have not obtained legal authorisation for admission or stay or for their activity during such stay in a particular country; or they no longer fulfil the conditions governing their stay or activity. Gosh (1998) further makes a distinction between ‘irregular entry’, ‘irregular residence’ and ‘irregular activity or employment’ as characteristics of the various routes to the status of undocumented migrant. Irregular entry includes clandestine entry or entry without, or with incomplete, travel documents. Irregular residence refers to situations where non-nationals within a country have not complied with the formalities or obtained legal clearance to stay in the country. Individuals who overstay the period allowed by their residence permit or visa are a typical example. Irregular activity or employment occurs when non-nationals engage in activities within a country which are either unlawful or for which they do not have, or cease to have the necessary legal authorisation. Irregular employment can arise when a non-national enters a country on a tourist visa and starts working without legal permission, or a seasonal worker with a short-term work permit is employed beyond the period of their work permit.

The crossing of European borders without proper authority or the violation of the conditions of entry or stay, have their roots in a number of factors. One of these has been the absence of comprehensive and proactive migration policies directed towards managing migratory flows. Among the principle characteristics of migration to post-war Europe have been firstly, marked changes in labour migration movements and secondly, ineffective migration management which has not kept pace with labour demand created by Europe’s changing demographic profile and economic needs.

Castles and Miller (2003:68) note that there have been two main phases in international migration since the end of the Second World War. These migratory movements have in turn fundamentally altered the nature of European society and brought into the sharp focus the need for clear policy oriented migration management. The first phase, from 1945 to the early 1970s, was marked by a concentration of investment and an expansion of production in the industrialised developed nations. This led to the recruitment of large numbers of migrant workers, many under ‘guest-worker’ systems, from less developed countries to fill jobs in the expanding industrial sectors of Western Europe7 .

The oil crisis marked the end of this phase in 1973-74 and the subsequent global recession led to major restructuring of the global economy. The new economic order emerging in the early 1970s was matched by parallel changes in international migratory patterns that were to continue into the 1980s and 1990s. Labour migration to Europe was virtually brought to a halt and new, tougher immigration laws made legal entry more difficult. As Niessen (2001:11) notes, these restrictive “zero immigration” policies were also based on concerns about the real – or imagined – social and economic effects of immigration flows, an issue that prompted the introduction of restrictive policy measures8 .

Towards the end of the 1980s, however, there was a marked resumption in migration to Western Europe prompting great concern and the introduction of tighter immigration controls by national governments. This reactive position was a clear signal that EU member states did not have a comprehensive policy framework capable of responding to and managing new, external migratory pressures. Economic motivation9 and political, ethnic or religious persecution were the primary push factors behind this new upsurge in migration. The new migrants came to work either legally or through irregular means and ever increasing numbers sought political asylum. Many came from Africa, Asia and Latin America and from the late 1980s to the early 1990s the political crises and turmoil in the former Soviet Union and Eastern Europe, particularly the disintegration of the former Yugoslavia and the ensuing ethnic conflicts, led to a steady stream of migration from east to west10 .

Immigration flows into Western Europe stabilised by the middle of the 1990s and in stark contrast to previous attempts by European governments to halt the flows of new migrants, a new discussion began on the need for future immigration. Political, business and other opinion leaders voiced support for national governments to encourage immigration to offset Western Europe’s declining population and labour force and to preserve the welfare state. By 2000, the European Commissioner for Justice and Home affairs admitted that “….the zero immigration policies of the past 25 years are no longer working….”11 and in July, 2002 then European Commission President Romano Prodi stated12 :

“ In the European countries, immigration is indispensable (….) for a simple
reason. No German, no Italian, no French of the younger generation wants to
do night shifts in a hospital. No one wants to work in agriculture or public
works. And so immigration is obviously needed.”

Traditionally, migrant workers into Western Europe have filled jobs shunned by nationals. In Germany for example, a large proportion of foreign workers are engaged in jobs refused by German nationals. According to one study, two-thirds of all foreigners who found employment in 1988 were in jobs turned down by Germans13 . In addition, without immigration European populations will shrink if fertility and mortality rates remain constant14 .

The promotion of immigration as a solution to the problems created by Europe’s changing population dynamics is not a position embraced by all. The EU itself has taken a measured approach arguing that immigration will not be an effective long-term way to deal with labour market imbalances, including skill shortages, which should be addressed by an overall strategy of structural policies in the field of employment and human resources development15 . Both supporters and critics of increased immigration are united, however, in their concern over irregular immigration, particularly through trafficking and smuggling, and the increasing numbers of undocumented migrants. However, as Gosh (1998:60) notes it is essentially the push factors of poverty and unemployment in combination with the pull of an unmet need for labour, that normally constitutes the driving force of irregular migration.

1.2.2 Globalisation as a Contributory Factor to Irregular Migration

There are essentially two strands to the globalisation thesis concerning its impact on international migration – whether legal or irregular (Hollifield 2000; Sassoli 1999). The first argues that migration is largely a function of changes in the international division of labour and the restructuring of the global economy that entails rapid and massive movements of productive factors such as capital and labour. The second relates to globalisation as a social and economic force that has lead to the erosion of the power of the nation state to regulate the flows of capital, goods, services and people as well as protect their human rights. States’ loss of control over their borders is, however, most visibly reflected in the rising numbers of migrants who move, either through legal or irregular means, in search of employment16 .

In economic terms, the globalisation of production and services has not only increased the demand for cheap low skilled labour in a range of sectors. It has also had a displacement effect on local economies that in turn increases pressure on large numbers of people to emigrate. A study by the International Labour Organisation (ILO) notes17 :

“The evidence points to a likely worsening of migration pressures in many parts
of the world……Processes integral to globalisation have intensified the disruptive
effects of modernisation and capitalist development.”

The consequent lowering of prospects for economic survival brought by globalisation and economic dislocation constitute powerful push factors for migration either through legal or irregular means. In contrast, the availability of jobs in the larger industrialised economies of Western Europe and the unmet need for labour are equally strong forces pulling disenfranchised people to find any way to migrate. As previously noted, the demand for certain types of labour in Western Europe does exist. In 1994 for example, the construction industry in German was estimated to employ some 500,000 irregular workers, many of them immigrants working for low wages18 . Certain economic sectors depend almost exclusively on a workforce consisting of underpaid and exploited migrant workers most of whom do not have the required legal documents. As Taran (2000) observes, undocumented migrants, like their legally employed counterparts, usually fill the “three-d” jobs i.e. dangerous, dirty and degrading, which are available in construction, domestic work and cleaning, textiles, hotels and restaurants and agriculture. In El Ejido, Spain 15,000 farm businesses produce up to 3 million tons of fruit and vegetables, half of which is exported to northern Europe, mainly Germany. According to the office for the social integration of immigrants in Almeria, almost 92% of the region’s agricultural workers are immigrants, 64% of them being Moroccans. In 1998 the office estimated the number of legal immigrants at 15,000 and the number of undocumented migrants between 15,000 and 25,00019 .

Contradictory reactions to the presence of undocumented migrants are evident in official policy statements directed against irregular immigration and unofficial employment practices in some sectors that actively support it. Taran and Geonimi (2003:6) note that the tendency of many states to tolerate the presence of undocumented migrant workers constitutes a de facto employment policy in which part of the work force can be disposed of in periods of economic downturn through the state’s right to expel foreigners from their territory. On the official level, however, there has been considerable discussion and concern about “illegal migration” and “illegal migrants”. As Gosh (2000:14) writes the policy response in Europe so far has been mainly reactive and essentially restrictive. Border control, internal law enforcement through more stringent employer and carrier sanctions, and punitive measures against trafficking have been the principal focus of attention. However, as Taran and Geonimi (2003:7) argue, migration policies have not addressed the gulf between continued demands for cheap labour and the increasing supply of this labour in other countries; they write:

“….basic labour economics theory would suggest that placing restrictive barriers between high demand and large supply creates a potentially lucrative market for services of getting the supply to where the demand is.”

The resulting restrictive migration policies adopted by Western European governments deny many migrants the possibility of acquiring a regular migrant status, and as a consequence irregular migration channels become the only alternative. This situation offers ‘opportunities’ for people to facilitate this by arranging travel documents and finding jobs in the destination countries.

1.2.3 Harmonisation as a Contributing Factor to Irregular Migration

Since 1986, when the Single European Act mandated the abolition of internal borders, EU leaders have developed a series of binding conventions and non-binding inter-governmental agreements in a movement to “harmonise” states’ asylum policies. These efforts towards increasing co-operation and co-ordination reflected their concern over the increasing number of asylum seekers and refugees in Western Europe discussed previously. The culmination of this trend towards harmonisation was the coming into force of the Amsterdam Treaty in 1999, which requires the EU to develop a common immigration and asylum policy by 2004. While many of these developments have assisted in expediting claims and standardising procedures, refugee advocates and human rights organisations argue that the harmonisation process has compromised refugee rights and reduced minimum standards of refugee protection. Many experts now believe that these increasingly restrictive policies have only served to force asylum seekers and refugees to resort to irregular means of entering “Fortress Europe”20 .

Consistent with the trend towards restricting the criteria for asylum, the “safe country” concept was formulated by the EU’s Ad Hoc Group on Immigration (comprising interior ministers of the EC states) and the European Council in the early 1990s and became the basis for “safe third countries” and “safe countries of origin” policies. The former policy stipulated that any EU state can refuse to admit an asylum seeker and consider their application if they have transited through a “safe” third country en route to Europe. According to the latter policy, nationals of a state considered to be a “safe country of origin” had “manifestly unfounded” claims to asylum in EU states and could be excluded from the asylum process. As some critics have observed (Loescher 2000:200), the criteria for defining “safe” were uncertain and controversial. After 1993 Germany defined a “safe state of origin” as a country “where it was safe to assume that neither political persecution nor inhumane or degrading practices take place” (op. cit). Britain put Sri Lanka and Nigeria on its list of safe countries in late 1995. Germany has now declared all of its neighbours to the east to be either “safe countries of origin” or “safe third countries”21 and by so doing has effectively given up any responsibility for considering the asylum application of anyone arriving in the country by land without a valid visa. The net result of the introduction of these policies was a considerable fall in asylum applications. In Germany for example, applications fell from 438,000 in 1982 to 99,000 in 1992. In 1994 with the introduction of more asylum regulations in Germany, applications dropped by 60% but the number of asylum applications increased by 50% in the neighbouring Netherlands. In 1998 asylum applications dropped by one-third from 1997, but applications in Germany’s neighbour Luxembourg increased from 400 in 1997 to 1,600 in 1998. In Belgium asylum applications almost doubled during 1998 and increased in Switzerland by over 70%22 . This is often cited as evidence that instead of providing a solution to the “asylum problem”, the new restrictive harmonised regulations have merely channelled the problem elsewhere. Additionally, countries on the periphery of Western Europe receive a much greater number of asylum applications from other continents.

Many experts and observers believe that the EU’s restrictive policies have had the effect of forcing people to find irregular means to enter European countries. Loescher (2000:201) writes, what were once “visible flows of asylum seekers” have now changed into “a covert movement of irregular migrants”, a phenomenon that is considerably more difficult for states to either count or control. Related to this is an increase in traffickers and smugglers using unscrupulous means to organise the entry of asylum seekers or irregular migrants. Many lose their lives in the process or find they have to resort to crime, such as prostitution, selling or transporting drugs for criminal organisations, to pay off their smugglers or traffickers. When considering these developments, it is evident that an undesired consequence of the EU’s restrictive approach to asylum has been the creation of a marginalized and criminalized underclass in Western European societies.

1.3 The Vilification of Undocumented Migrants and Their Loss of Human Rights

Undocumented migrants’ weak legal status and economic position make them extremely vulnerable to employer pressure, abuse and exploitation. A corollary is that they inevitably come to constitute an under-paid and less protected group that contributes to economic and social inequality in the receiving country. This fact has been used by EU governments to suit their own political agenda. Gosh (1998:92) cites a report submitted to the European Commission in 1991 which noted that:

“the acceptance of low wages and low standards of social security by the irregular migrants is….the source of a growing xenophobia on the part of those who – being on the lowest step of the social hierarchy – feel their own interests are being threatened.”

Conservative political parties and interest groups exploited this by raising anti-immigration slogans and framing these issues in the context of irregular migration. This only contributed to an already existing climate of racial intolerance and xenophobia. This trend to scapegoat migrants in general and undocumented migrants in particular, prompted UN Secretary Kofi Annan in a speech to the European Parliament, to urge Europeans to view migration more positively adding that in Europe migrants “have been stigmatised, vilified and even dehumanised.”23

In many countries, the legal application of human rights norms to non-nationals is inadequate or seriously deficient and this is particularly so with respect to undocumented migrants24 (Taran 2000:1). As regards regional policies, human rights organisations such as Human Rights Watch (HRW) are concerned about the failure of the EU to incorporate rights protections into the range of legal and policy documents developed in the process of harmonising immigration and asylum. Although the EU actively promotes human rights in all its endeavours, research25 conducted by HRW has led the organisation to conclude that the harmonisation process has uniformly failed to acknowledge in full that migrants, and in particular undocumented migrants - who the EU routinely refers to as ‘illegal migrants’ - do in fact have human rights. They argue that the EU’s approach to immigration and asylum has focused almost exclusively on combating ‘illegal’ immigration and reflects a prevailing official attitude that undocumented migrants live a “rightless existence”26 .

1.4 The Implications for the Health of Undocumented Migrants

The failure to honour the social, economic and cultural rights of undocumented migrants and the direct or indirect complicity of governments, is most visibly reflected in two ways. The first relates to the degrading living and working conditions affecting undocumented migrants (as well as their legally employed counterparts) and the health risks that these conditions pose. In the agricultural area of El Ejido, referred to in a previous section, the municipality had a deliberate policy of segregation aimed to keep the migrant labourers outside of the town centre. Most of them had to live in old, abandoned shacks in unsanitary and health threatening conditions: 55% of them had no drinking water, 57% no washing or toilet facilities and 31% no electricity. Hundreds of people were said to squat in huts made of old wood and plastic. The region’s officials estimated the number of migrants living in unfit conditions at 17,00027 . This was matched by the unacceptable and unhealthy working conditions that the migrant workers had to endure. In the glasshouses, the heat reached a high of 50 degrees centigrade and the workers had close contact with large amounts of pesticides. Toxic pesticides are extensively used in agricultural production, the many laws that govern pesticide exposure do not adequately protect migrants and employers often violate these laws. Children were also exposed to pesticides as workers and through their parents contact with these substances. Exposure to pesticides can cause acute effects such as rashes, vomiting, headaches and respiratory problems and the long-term effects include cancer, birth defects and kidney damage. Breast-feeding mothers have also been found to carry large amounts of pesticides in their milk28 .

A second way in which the honouring of undocumented migrants’ right to health can be assessed relates to estimates of probable morbidity among this group. Information on the nature and distribution of disease and illness among undocumented migrants is scant. However, it is possible to infer morbidity patterns from the numerous studies showing the poorer health status among migrant groups in EU countries. In Germany for example, the risk of accidents at work among adults is twice as high for migrants than the host population and working conditions that threaten health are experienced disproportionately by semi-skilled and unskilled workers. These types of workers are over-represented among all migrant sub-groups (Zimmermann 1983). Huismann et al (1997) also show that industrial accidents have tended to be higher among migrants working with poor safety measures. Rommel & Weilandt (2002:176) report that in Nordrhine-Westphalia, Germany, migrants are more often registered as disabled for occupational reasons than Germans. Working conditions that are detrimental to health are more often found among unskilled and semi-skilled workers and the proportion of such workers is much higher in all migrant subgroups. The authors further note half of the occupational diseases among migrants in Nordrhine-Westphalia were found among Turks who comprise only a third of the entire migrant population (op. cit).

As regards the reproductive health of migrant women, the results of a large study conducted in Britain showed that among the main predictors for severe maternal morbidity were not only older age, but social exclusion and being non-white (Waterstone et al 2001). In a review of epidemiological studies comparing the pregnancy outcomes of migrant and native women, some of the results showed that migrant women had inadequate or no antenatal care and they exhibited higher rates of stillbirth and infant mortality (Bollini 2000). Although access to health care and health utilization are important factors, which may prevent unnecessary morbidity and mortality, among the other determinants affecting the health of migrants in a broader socio-economic context is the impact of racism which has a central role in health inequalities (Nazroo & Karlsen 2001).

By extrapolating from these studies and when considering the limited or non-existent health care access experienced by most undocumented migrants, it is possible to infer that their health status is either no better or in fact worse than their legally resident counterparts. The extent to which this violates their human rights and reflects on Britain and Germany’s response to the issue of providing health care to undocumented migrants, is best illustrated by an examination of what the international legal standards are regarding their right to health.

2. The Right to Health

The “enjoyment of the highest attainable standard of health” has been recognised as a “fundamental right” since the adoption of the World Health Organisation (WHO) Constitution in 194629 and since then it has been recognised by various international human rights treaties, many of which have been widely ratified. The right to health, like all the social rights of undocumented migrants, is outlined in various international, legally binding covenants30 . Most of these international human rights instruments apply to all persons within the territorial boundaries of a state party and do not initially make distinctions between legal and “illegalised” foreigners (PICUM 2002:16; Gosh 1998:129). Additionally, the fundamental characteristics of human rights are that they are rights of individuals - these rights are inherent in individuals because they are human. Additionally, they apply to all people everywhere throughout the world; they are principally concerned with the relationship between the individual and the state; and they are based on the concepts of equality, freedom and solidarity (Gruskin & Tarantola 2000; Haigh 2002; Mann et al. 1994).

Among the treaties stipulating legally binding obligations regarding health care for state parties is the International Convention on Economic, Social and Cultural Rights 1966 (entry into force January 3rd , 1976)31 . Germany became a state party to the Convention on January 3rd , 1976, Britain on August 20th 1976. Government obligations comprise both the underlying preconditions necessary for health and the provision of health care. Article 12 reads:

The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for:

The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

The improvement of all aspects of environmental and industrial hygiene;

The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

The most recent human rights instrument to come into effect, which both guarantees the right to health and explicitly addresses the rights of certain categories of undocumented migrants is the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, December 18th 1990 (entry into force July 1st , 2003):

Article 28 Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.

2.1 Defining the ‘Right to Health’

The varying provisions in the different human rights treaties and declarations collectively constitute the ‘right to health’ which can be said to embrace two main components: (1) elements related to “healthcare” and (2) elements concerning the underlying determinants of health which may include a healthy environment, safe drinking water and adequate sanitation, occupational health and access to health related education and information. (Toebes 1999:676). There is a consensus among scholars and observers, however, that the meaning and scope of the right to health lacks conceptual clarity (Toebes 1999; Leary 19994; Tarantola 2000; Mann et al 1994). Increased efforts to draft authoritative interpretations of the right to health as an attempt to ensure state responsibility and accountability resulted in the adoption of General Comment No. 14 on the Right to the Highest Attainable Standard of Health in May, 200032 . The General Comment provides directions for the practical application of Article 12 of the CESCR and outlines a monitoring framework. It further provides clarification on several aspects of the right to health and in an analysis of the normative content of the right, it distinguishes between four essential features of health services:

Availability - essentially provides that governments have a responsibility to ensure prevention and care facilities, including infrastructures, skilled human resources, goods and services are in place and appropriately funded;

Accessibility - highlights the governments’ obligation to ensure these to all without discrimination. Accessibility has four overlapping dimensions; non-discrimination, physical accessibility, economic affordability and information accessibility;

Acceptability - requires that the services are designed and delivered in ways that are culturally appropriate to targeted users and take account of gender and age differentials. Medical ethics and confidentiality must be respected.

Quality of services - requires that these services are of a good scientific standard. These services must include inter alia skilled medical personnel and scientifically approved drugs and equipment.

The right to health is closely related to and dependent upon the realization of other human rights including the rights to non-discrimination and equality. Non-discrimination is a foundational principle of human rights law and it is of particular importance and relevance to the right to health of undocumented migrants. Legal residence status is the basis for a certain degree of discrimination regarding social and economic rights (Helton 2000:284). This is a political issue that ought, however, to be faced as a human rights issue instead. Denying such rights to people who are undocumented “is certainly contrary to the spirit of human rights, (and) contrary to the letter of the covenant” (op. cit. pg. 285). General Comment 14 paragraph 18 on the right to health clearly proscribes discrimination on any grounds or status and paragraph 19 emphasises the necessity of equality of access to health care and heath services. As Gruskin and Tarantola (2000:6) point out, however, the prohibition of discrimination does not mean that differences should not be acknowledged, rather different treatment must be based on ‘objective and reasonable criteria’.

“ any discrimination in access to health care and the underlying determinants of health, as well as to means and entitlements to their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health.” (General Comment 14, paragraph 18)

It is instructive to consider in what ways states are to respect the right to health and in what ways they violate this right under international human rights law. This is significant in any critical assessment of Britain and Germany’s response to the issue of health care for undocumented migrants. Generally, state responsibility for human rights can be examined at three levels – the obligations to respect, protect and fulfil (Eide 1989; Toebes 1999; Tarantola 2000; Gruskin & Tarantola 2000; Hunt 2000). The obligation to respect, the principal focus of this paper, requires the state and all its agents to abstain from interfering directly or indirectly with the enjoyment of human rights. States should refrain from anything that violates the integrity of the individual or infringes on his or her freedom, including the freedom to use the material resources available to the individual in the way he or she finds best to satisfy basic needs. In practice, no health practice, policy, programme or legal measure should violate human rights. Additionally, efforts must be made to ensure the provision of health services to all population groups on the basis of equality and freedom from discrimination. Particular attention should be paid to vulnerable and marginalized groups34 . In addition, General Comment 14 paragraph 34 specifies inter alia that states must:

refrain from denying or limiting equal access for all persons including prisoners or detainees, minorities, asylum seekers and illegal immigrants (emphasis added), to preventative, curative and palliative health services; abstaining from imposing discriminatory practices as a State policy; and abstaining from imposing discriminatory practices relating to women’s health status and needs.

The language of General Comment 14 is unequivocal in defining what constitutes a violation but it also cautions that in determining which actions or omissions amount to a violation, it is important to distinguish the inability from the unwillingness of a state party to comply with its obligations (paragraph 47). It further distinguishes between violations that occur through acts of commission and acts of omission (paragraphs 48-49). The former is said to include the formal repeal or suspension of legislation necessary for the enjoyment of the right to health or the adoption of legislation or policies that are blatantly incompatible with domestic or international obligations to the right to health. Acts of omission include the failure to take appropriate measures to ensure the full realisation of everyone’s right to the highest attainable standard of physical and mental health; the failure to have a national policy on occupational safety and health; and the failure to enforce relevant laws.

As regards state parties’ obligations to respect the right to health, violations are committed when state actions, policies or laws that contravene the standards set out in Article 12 of the ICESCR are likely to result in bodily harm, unnecessary morbidity and preventable mortality. Some examples of this include35 :

The denial of access to health facilities, goods and services to particular individuals or groups as a result of de jure or de facto discrimination.

The suspension of legislation or the adoption of laws or policies that interfere with the the enjoyment of any component of the right to health36 .

The deliberate withholding or misrepresentation of information vital to health protection or treatment.

In summary, it can be said that although observers have noted the legal content of the right to health has not yet been well established there are a number of factors which bear great relevance to Britain and Germany’s response to the issue of health care for undocumented migrants. The first relates to the universality and inclusiveness of the right to health, like all other human rights, which unequivocally relates to everyone within a state’s jurisdiction, including the undocumented. Allied to this is a second factor, the clear obligation for states to uphold the rights of undocumented migrants as specified in the International Convention on the Protection of the Rights of Migrants and Their Families and General Comment 14 on the Right to Health. A further factor concerns the pivotal position of non-discrimination in international human rights law which should also be a foundational principle of states’ policies, practices and laws regarding the provision of health care for all.

3. The German Case Study

Since the middle of the 1950s Germany has become one of the most important destination countries for migrants in Europe. It’s immigrants have ranged from “guest-workers from Mediterranean and central European countries, to increasing numbers of “Aussiedler” ( i.e. ethnic Germans residing in East European territories ), and asylum seekers from the end of the 1980s. However, prevailing anti-immigration sentiments, particularly at the political level, have prevented reforms and entrenched public attitudes against migration (Cyrus & Vogel 2003). Although Germany represents less than one-fourth of the total EU population, it is host to 36% of the EU’s foreign residents (Martin 2003:44).

3.1 The Fight Against Illegal Immigration and “Illegalised Migrants”

A defining feature of Germany’s migration background is the considerable political and public concern about irregular immigration and the government’s activities and controls in this regard. Estimates of the number of undocumented migrants in Germany range from 500,000 to 1 million37 and 150,000 to 1.5 million38 . In larger cities such as Berlin and Cologne, estimates are 100,000 and 20,000 respectively39 . There is general agreement that the number of unauthorised migrants reaches a peak in summer when “working tourists” from eastern Europe find jobs in agriculture, construction and services (Martin 2003:50). Berlin’s building boom in the mid 1990s attracted a large volume of contracted and sub-contracted foreign labour. Estimates are that approximately 15-25% of these foreigners were not legally employed (op. cit). In a bid to combat this, Germany assigned extra labour inspectors to enforce labour and immigration laws. However, these raids could not prevent undocumented migrants from working in the construction industry.

Unlike some of its EU neighbours such as Greece or Italy, Germany has not so far conducted legalisation programmes and this issue has not even been given serious political attention. Such programmes have been rejected with the argument that this would act as a pull factor for undocumented migrants and counteract immigration policy (Cyrus & Vogel 2003:16). In fact, Germany has lead the way at a regional level, in the fight against ‘illegal’ immigration. It took the initiative in 1991 with regard to the establishment of the Budapest Process, a consultative forum of more than 40 governments and 10 international organisations aiming at preventing irregular migration and establishing sustainable systems for orderly migration in the European region.

In addition, the German Bundesgrenzschutz (BGS or German Border Guard) has one of the largest border patrol staffs in Europe and actively encourages citizens to denounce suspected ‘illegal’ migrants through a free phone number. In some regions up to 70% of the detentions of refugees are through denunciations40 . Police departments in big cities have specific squads to detect “illegal migrants”. These special squads work closely with other authorities such as the employment agency, the immigration authorities and the welfare agency – this latter agency is responsible for “street-work” projects that may attract “illegal migrants” (Keiser et al 2000:11). This highly developed level of co-ordination combined with special educational courses on fighting ‘illegal’ immigration (e.g. how to find and identify “illegals”) create a sophisticated structure and pervasive ideology of control. Police in the late 1990s located between 130,000 and 140,000 foreigners a year who were suspected of being unlawfully in the country (Martin 2003:51).

3. 2. Health Care for Undocumented Migrants

Residing in Germany without a valid permit or visa is a crime according to the Law on Foreigners (Ausländergesetz, sections 92, 92a and 92b). This law prescribes that all those who have entered the country without a visa or who are staying without a visa or valid permit from the Alien Registration Authority (Ausländerbehörde) can be fined or imprisoned for up to one year. This in effect means that, by virtue of their “illegalised” status, undocumented migrants are essentially excluded from the health care system in Germany and are unable to enjoy their right to health. The state health system is organised on the basis that individuals are insured through their place of employment or through another working family member. Of course, this also assumes legal residency and/or legal employment41 . Paying medical bills in cash is also possible but the prohibitive costs of health care do not make this a viable option for undocumented migrants. Research by Braun, Brzank & Würflinger (2003) and Braun & Würflinger (2001) have identified the following features of health care for “illegalised” migrants in Germany.

3.2.1 Legal Obstacles to Health Care

In theory, undocumented migrants can obtain medical care and financial support through the Social Welfare Centre since by law, they are considered “persons obligated to leave the country” who have rights under Article 53 of the Ausländergesetz (AuslG). This classification also means they are subject to Article 4 of the Asylbewerberleistungsgesetz (AsylblG) which does allow restricted care of acute health conditions. However, other laws make it an impossibility for undocumented migrants to make such claims without risking deportation.

The first of these is Article 76 of the AuslG which stipulates that any member of an official board who has information on an individual without a valid residence permit must pass this on to the Ministry of the Interior. Public servants, therefore, have a “duty to denounce” all undocumented migrants voluntarily at the risk of being penalised if they do not. Article 76 reads42 :

Transmission to registration office for foreigners:

(2) Public boards must inform the registration office of foreigners if they receive knowledge of:

a. the stay of a foreigner who does not have any kind of residence permit or Duldung43

b. the offence against a local restriction or

c. any other reason for deportation (….)

(5) The Federal Ministry of the Interior lays down (….) that all

a. registration offices

b. offices for state affairs

c. passport offices

d. social services and youth boards

e. justice, police and offices for regulation

f. job centres

g. revenue and declaration offices

h. trading offices, must without any request of the registration office for foreigners, inform them of all personal facts of an foreigner.

A second legal hindrance which effectively blocks undocumented migrants’ right to access health care is Article 92a. of the AuslG which clearly states that anyone who helps an individual without a regular residence permit can be punished. This applies if it is done for financial gain or if it is done repeatedly or for the benefit of several foreigners:

Will be penalised with detention up to five years or with a monetary fine44 .

In general, there is considerable confusion in Germany, and specifically among the legal profession, regarding the interpretation of this article (PICUM 2002:44). According to legal principles, anyone assisting undocumented migrants could be sued if this action caused the migrant to decide to stay illegally or overstay. If a court case45 ensued, then it must be proven what made the undocumented migrant stay. This a fact that can only be established by the undocumented migrant him/herself who in most cases would already have been deported. As regards health care, this article effectively means that, although medical doctors are bound by the Hippocratic oath to assist anyone in need, this assistance is illegal and punishable by law.

3.2.2 Out-Patient Primary Health Care

Self-medication, consulting members of their own network or health professionals from their communities if they exist, appears to be the initial response of undocumented migrants when illness occurs (Braun & Würflinger 2001:7). It is only when these strategies fail that undocumented migrants risk seeking professional help, sometimes borrowing the insurance card of a trusted friend or family. The delay in seeking treatment can be at the expense of their own health, and in the case of infectious diseases, the health of others. However, for many it is the only real alternative as actively seeking medical help carries the risk of discovery and eventual deportation.

In recognition of this, anti-racist and refugee rights networks in a number of cities refer “illegalised” migrants to sympathetic doctors who treat them for free or provide more extensive treatments for a minimal fee (Kieser et al 2000:9). In Berlin, the Büro für medizinische Flüchtlingshilfe was established in 1996 as an anti-racist, non-governmental resource providing free and anonymous medical treatment twice a week for undocumented migrants and refugees. This professional network comprises volunteer physicians, midwives, therapists and interpreters. Costs of x-rays, laboratory tests, medication and glasses for example, are funded by donations. There are now ten (10) similar offices in Germany all loosely connected by the “Kein Mensch is illegal” (“No one is illegal”) campaign46 . In addition, some charity and church organisations are extending their medical aid to include “illegalised migrants” as well as the homeless. Since February 2001, the Catholic charity Malteser Hilfsdient has started offering a medical service free of charge without verifying the patients’ residence status. These initiatives to provide medical support for “illegalised migrants” are in fact illegal under the AuslG but as Keiser et al (2000:9) write, this is generally tolerated by the authorities due to a concern “for the people’s health”. An added advantage for the state, however, is that it does not have to absorb the costs of providing health care to this group.

3.2.3 Infectious Diseases

There is the possibility for undocumented migrants to take advantage of some health care measures – as long as they are aware of this possibility. The new law for infectious diseases (Infektionsschutzgesetz) stipulates that some infections such as tuberculosis are diagnosed and treated anonymously and free of charge at public health offices. Vaccinations for children are also offered by some co-operating public health services without verification of residence status. Sexually transmitted diseases such as syphilis and gonorrhoea are diagnosed anonymously and free of charge and some are also treated by the STD departments of the public health office. HIV/AIDS testing is also anonymous and free, however, treatment is not paid for unless migrants have at least a Duldung.

3.2.4 Emergency and Hospital Care

Hospitals, emergency units and general practitioners are obligated by law to provide medical treatment regardless of health insurance or residency status. Braun & Würflinger (2001:8) note that this law of obligation is often cited by politicians as evidence of the adequacy of medical care available to undocumented migrants. However, the experience of undocumented migrants seriously challenges this perception. If an individual is unable to provide a valid insurance card, the hospital administration usually tries to find another person or institution that will sign documentation assuming responsibility for the cost of treatment, usually even before treatment has commenced. The undocumented migrant may unwittingly declare him/herself as a private patient as a way of sidestepping this issue which increases the cost of treatment significantly. Other reported examples of hospital treatment include (op. cit. pg. 9):

hospitals retaining personal documents of patients such as passports in an effort to ensure payment;

hospitals calling the police at the point of admission in order to ascertain residence and insurance status before treatment begins. Deportation is, therefore, inevitable, once they have been treated;

hospitals arranging “deportation” of undocumented patients at their own cost by sending them by ambulance to countries such as Poland or the Ukraine, since transportation is less expensive than hospital treatment in Germany;

physicians and hospitals have admitted that if insurance and residence status could not be established in advance, then there was a qualitative difference in the standard of treatment offered e.g. a fracture would be treated with a plaster dressing instead of being surgically treated;

undocumented migrants discharging themselves from hospital before treatment has been completed out of a fear of being deported47 .

The net result is that planned hospital treatments such as operations or the treatment of chronic diseases like diabetes are not available to undocumented migrants. In the event of non-payment, there is the possibility for hospitals to ask the Social Welfare Centre to refund the costs of treating an uninsured person regardless of their residence status. This is a highly complicated and time-consuming bureaucratic procedure with an uncertain outcome. Additionally, coverage is only provided from the day the SWC was notified and so does not cover the patients entire stay. In the case of undocumented migrants, the SWC is obligated under Article 76 of the AuslG to “denounce” them, thus initiating the process towards deportation. Braun & Würflinger (2001:9) note that there are only a few hospitals that have created social funds or special agreements for treating undocumented migrants.

3.2.5 Pregnancy and Reproductive Health Care

The pregnancies of undocumented female migrants are considered high risk by obstetricians because of the psychological and physical strain their “illegalised” status imposes. Under German law, maternity leave extends from the six (6) weeks prior to delivery to the eight (8) weeks48 afterwards and during this period undocumented women are able to legalise their residence status49 by applying for a Duldung. This is issued on the grounds that they are unable to travel due to medical reasons and it entitles them to pre-natal and post-natal care. The newly born child will also receive a birth certificate if the mother possesses a valid residence permit. Once this legally protected fourteen (14) week period is over, both the woman and her child lose their residence status and since the authorities know their names and address, they are most likely deported.

3.3 Discussion

By “illegalising” undocumented migrants, criminalizing assistance to them and requiring their ‘denunciation’ by all governmental and public institutions, the German government has created a web of laws that effectively exclude undocumented migrants from claiming their human rights, including their right to health. The de facto discrimination experienced by undocumented migrants regarding access to health care resulting from Articles 76 and 96a of the AuslG, is contrary to the principles of equality and non-discrimination informing the right to health.

As regards the issue of non-discrimination, one feature of the dominance of this principle in international law is that although all the major treaties recognise no distinction between the national and the non-national, they also acknowledge the authority of the state to make distinctions between citizens and non-citizens in some areas. This of course is subject to the general principle of equality that imposes on those who wish to treat individuals differently the duty of showing valid reasons for different treatment (Goodwin-Gill 2000:167). In such instances, the question that needs to be addressed is whether the grounds on which this distinction is based are relevant and whether the measures adopted are reasonable and proportional. With regard to undocumented migrants, the question is whether residence status is relevant in issues affecting the health and possible life or death of an individual and whether compromising access to health care is both a reasonable and proportional response to individuals without authorised residence needing care. It is both a political and ethical issue, therefore, if the argument of state sovereignty can be used as a justifiable criterion for both “illegalising” individuals and placing them outside the protection of their human rights.

The combined effects of these laws is to nullify the right to the enjoyment of the highest attainable standard of health for undocumented migrants. Definitions of the nature and scope of violations clearly state that the existence of policies or legislation which are incompatible with the right to health or interfere with the enjoyment of this right are considered a violation by the state. This stipulation has also been expanded on in the Limburg Principles and the Maastricht Guidelines (see endnote 33 ). It becomes evident that Articles 76 and 96a impair undocumented migrants’ right to health when considering the following guideline50 :

State policies
11. A violation of economic, social and cultural rights occurs when a State pursues, by action or omission, a policy or practice which deliberately contravenes or ignores obligations of the Covenant, or fails to achieve the required standard of conduct or result. Furthermore, any discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant.

In summary, the cumulative effect of these laws is the violation of the state’s obligation to respect the right to health. As paragraph 50 of General Comment No. 14 notes:

“Violations of the obligation to respect are those State actions, policies or laws that contravene the standards set out in article 12 of the Covenant and are likely to result in bodily harm, unnecessary morbidity and preventable mortality. Examples include the denial of access to health facilities, goods and services to particular individuals or groups as a result of de jure or de facto discrimination”.

Therefore, the safe and equal access to health care can only exist when economic, social and cultural rights are respected and fulfilled independently of residence status. To achieve this, a necessary first step is the abolition of Articles 76 and 92a.

4. The British Case Study

From traditionally being a country with high emigration rates, Britain now has one of the most multicultural societies in Europe. In 2000, it was one of the fifteen (15) countries in the world with the largest international migrant stocks (IOM 2003a). Since the beginning of the post-war period, discussions about immigration and immigration policy in both public and political spheres have been dominated by issues of “race” and ethnic origin. In recent years, there has been considerable debate and increasing policy initiatives directed towards the rising numbers of asylum seekers, efforts to attract skilled and professionals migrants to Britain and managing race relations. Current attempts to ‘modernise’ the migration system by Home Office51 policies include curtailing the rights of asylum seekers yet opening up migration options for certain types of skilled migrants. In response to this, some immigration rights groups have been critical of what they perceive as a migration strategy that simultaneously promotes a negative view of asylum seekers yet tries to liberalise entry for economic migrants (Baldacinni 2003:2).

4.1 The Fight Against “Illegal” Immigration

Britain has traditionally pursued an island strategy to deal with unwanted foreigners – tight screening at ports of entry and relatively few internal controls (Martin 2003). However, the perception of Britain as a “soft touch” and the limited internal controls have been an incentive for undocumented migrants to try and gain entry. Officials intercepted 18,500 migrants trying to slip through the channel tunnel in the first six months of 2001 (Hernandez 2002:3).

Most attention is directed towards preventing illegal entry and Article 25, §2 of the 1971 Immigration Act stipulates a fine and imprisonment for anyone facilitating this. The Home Office’s controversial 2002 White Paper, however, stated an intent to make this penalty more severe by increasing the prison sentence to up to fourteen years for assisting the ‘illegal’ entry and harbouring of undocumented migrants. This position has attracted strong criticism. In further attempts to halt the increase in unauthorised immigration the government has introduced carrier sanctions and stiff penalties for employers of undocumented migrants. The Immigration (Carriers Liability Act) of 1987 introduced fines of up to 2,000 pounds for each migrant found on cars, planes or ships entering the UK (the fine is waived if the migrant applies for and is granted asylum). Trucks and other vehicles were included in an extension of sanctions inn January 1999. Truckers have received the largest fines and in 2000, approximately 20,000 migrants arrived by trucks and applied for asylum (op. cit. pg 69)52 .

In terms of internal controls, Britain introduced employer sanctions under Section 8 of the Asylum and Immigration Act of 1996. This imposes fines of up to 5,000 pounds for each unauthorised migrant hired. In 1999, twenty-three employers were charged with employing an undocumented migrant, nine were found guilty in court and in 2000 the number of convictions rose to 23 (op. cit pg. 71). A further development is the planned introduction of a secure ID card scheme to be phased in over a number of years53 . The aims of the scheme, according to the government ‘s Home Office, would be boosting the fight against illegal working; tackling immigration abuse since the absence of such a card is perceived as a pull factor for irregular migration; and ensuring that free public services are only used by those entitled to them - preventing abuse such as ‘health tourism’.

The discourse on irregular migration in Britain, as in many other European countries, is also increasingly characterised by the criminalization of undocumented migrants. A confidential “Immigration related Crime hotline” has been recently introduced asking people to report cases of immigration related crime. Although it encourages calls aimed at exposing the trafficking and exploitation of migrants, several organisations have recognised the criminalizing effects of this initiative (PICUM 2002:47). Concerns are growing that the hotline will be used for other purposes and so contribute to public paranoia and a negative image of undocumented migrants. It could also prove to be the beginning of a culture of denunciation of all irregular migrants

Another feature of irregular migration in Britain is the existence of gang-master54 organised crews of asylum seekers and undocumented migrants working in the agricultural, construction, tourist, commercial packing and contract cleaning industries. In general, there is a perception that laws against employing undocumented migrants are routinely ignored. The findings of a study conducted among undocumented Polish migrants in Britain also lead the authors to conclude that the stay of such irregular migrants is also related to inefficient implementation and co-operation between police and immigration authorities (Düvell & Jordan 2003:12).

4.2 Health Care for Undocumented Migrants

The British government has not explicitly addressed undocumented migrants’ right to health care in its legislation. Previously, the term “illegal migrant” did not feature in any of the official National Health Service (NHS) documents (PICUM 2001; Düvell 2002). Undocumented migrants were generally subsumed under the category “overseas visitor” i.e. any person of any nationality who is not ordinarily resident in the UK. Overseas visitors include all migrants such as tourists and those coming to work or study in Britain. Up until recently, state funding of health care, an absence of systematic internal checks on lawful residence status and the importance of length of residence or intention to reside, combined to make health care largely accessible to undocumented migrants.

However, this access has changed considerably due to the introduction of revised NHS regulations55 in April 2004 stipulating charges for hospital services, other than accident and emergency care, for overseas visitors as well as the necessity of proving legal residence status in the UK56 . Further changes are planned as the government has submitted new proposals for the exclusion of overseas visitors from eligibility to free primary health care services57 in a bid to make regulations governing access to primary and secondary services consistent. The tougher stance on access to the state organised and funded health service is in response to alleged abuses by “health tourists”. The new regulations and proposals are expected to “close existing loopholes that have allowed overseas visitors with no substantive connection with the UK to receive free NHS hospital treatment”58 and in this regard, specific reference is made to failed asylum seekers. In marked contrast to previous NHS documentation, the status of “illegal immigrants” is also clearly addressed and in the case of hospital services, health professionals will have the responsibility to report undocumented migrants. Doctors’ and managers’ groups have already voiced concerns that NHS staff are now expected to act as “social police” by assuming the government’s responsibility of determining who is eligible for free NHS treatment and reporting undocumented migrants (Kmietowicz 2004). The new government rules withholding NHS hospital care from failed asylum seekers have been labelled “unethical and inefficient”, and protests have been made that health professionals should “not routinely be put in the position of mixing clinical imperatives with legal enforcement” (Singer 2004:1904).

4. 2.1 Criteria for Eligibility for Health Care

The deciding criterion for eligibility to receive free medical care is whether an individual is “ordinarily resident” in Britain. Consequently, nationality and the payment of national insurance contributions or taxes are irrelevant. The NHS is, therefore, conceived as primarily being for the benefit of people who live in the country59 . “Ordinarily resident” is a common law concept considered by the House of Lords in 198260 . In order to determine whether the residence status of a person seeking free NHS services makes them eligible based on the House of Lords judgement, NHS Trusts are urged to consider whether the individual is living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being whether they have an identifiable purpose for their residence here and whether that purpose has a sufficient degree of continuity to be properly described as “settled”.

The regulations are clear, however, that treatment must not be delayed or withheld while establishing a patient’s chargeable status if, in the opinion of clinicians, treatment is “immediately necessary”61 . NHS Trusts are instructed that they should always provide “immediately necessary” treatment whether or not the patient has been informed of, or agreed to pay charges. Failure to do so could be in breach of the Human Rights Act of 1998.

Refugees, or anyone who has made an application for asylum, are treated as “ordinarily resident” and so have equal access to care. There is no special law granting or extending residence for medical reasons, decisions are made on a case by case basis. Although the health care system is publicly funded, patients can be seen on a private payment basis and private health insurance does exist. However, this is usually taken advantage of by middle to high income earners wishing to avoid long waiting lists and to be treated at convenient times. Most undocumented migrants are unable to pay as a private client or meet the financial or other requirements of acquiring health insurance.

4.2.2 Secondary and Hospital Care

The general rule is that “overseas visitors” are required to pay for hospital treatment. However, prior to April, 2004, people who had been in Britain for twelve (12) months and anyone who came into the country with the intention of taking up permanent residence were exempt. These requirements were quite loose and consequently, it was relatively easy for a patient who had been in Britain for less than twelve months to state they intended to remain permanently. The new regulations aim to make the rules stricter partly through the requirement of proof of legal residence. Exemptions from charges for overseas visitors are only possible in two cases: one is certain categories of people and the other certain categories of illness or treatment.

People who have been lawfully living in Britain for twelve (12) months preceding the date on which treatment is given. These exemptions extend to the spouse and school age children of an exempt person if they are living in the UK with this person on a permanent basis. Since the introduction of the new regulations in April 2004, every time a patient begins a new course of treatment at the hospital and is entered onto the NHS Trust’s records for in-patient or out-patient care they are asked “Where have you lived for the last 12 months?” Now that the exemption from NHS charges expressly applies only to those living lawfully in England, they are further asked “Can you show that you have the right to live here?”. This new change in effect means that undocumented migrants, are excluded from free NHS hospital care, regardless of their length of stay in the country.

Refugees and asylum seekers who have made a formal application to the Home Office which has not yet been determined. A refugee is defined as someone who has been granted asylum in the UK. Exemption for asylum seekers only lasts until their claim is determined and NHS Trusts are required to check that the application is still on-going at intervals if treatment is being provided over a long period. If the claim is finally rejected before the patient has been in the UK for 12 months, they are chargeable for all treatment (including an existing course of treatment) from the date of rejection of the claim. They also do not become exempt from charges after 12 months’ residence here if their application fails.

Nationals of certain non-EEA countries with which the UK holds bilateral (or reciprocal) health agreements and which allows referrals to the UK to receive specific treatment with the agreement of their “home” country. They will have formal documentation to cover them for their treatment.

Nationals of countries that are signatories of the European Social Charter who are genuinely without the money to pay for any necessary treatment.

Services exempt from charges include:

Services provided in an Accident and Emergency department, unless and until the patient is admitted as an in-patient or registered at an out-patient clinic; for example, where emergency treatment is given elsewhere in the hospital e.g. intensive care or coronary care, it is chargeable – it is the location that is exempt, not the type of treatment.

Services provided at a walk-in centre providing services similar to those of an accident and emergency department of a hospital.

Treatment of certain specified illnesses on public health grounds which include notifiable diseases and those to which specific public health enactments apply e.g. tuberculosis, malaria, meningitis.

Services provided by staff employed to work at, or under the direction of, a hospital.

Family planning services.

Treatment at a sexually transmitted disease clinic, but in the case of HIV only in relation to diagnostic testing and associated counselling.

Compulsory treatment under the terms of the Mental Health Act 1983, or psychiatric treatment included by the Court as part of a probation order under the terms of the Powers of the Criminal Courts Act 1973.

In cases where the patient has not lived in the UK for 12 months, or there is some doubt about this e.g. they are unable to provide satisfactory evidence of their right to live in the UK, the procedure is for the patient to be referred for interview by the Overseas Visitors Team. They then may become liable for any treatment received. The regulations note that this process may lead to the discovery of “illegal immigrants” who may also, depending on the circmstances, be liable to pay NHS charges. With regard to health professionals’ duty to confidentiality, the regulations further stipulate that “while there is a public interest argument for reporting the patient’s immigration status”, the decision to report must be weighed against the “the medical needs of the patient and the wider public”63 .

4.2.3 Primary Health Care

Individuals are entitled to sign themselves on the patients’ list of a General Practitioner (GP) in a practice linked to their area of residence. Although there are rules, as outlined above, on who is eligible as a NHS patient, it is really up to the GP’s discretion who they accept on their list. This acceptance is a guarantee of free treatment and doctors can decide to accept someone as a permanent or temporary patient. Temporary status means they remain on the list for less than three months and they are not offered a new patient screening check nor access to routine immunisation or cervical screening. If an individual is not accepted by a particular GP or GP practice, they are free to try and gain acceptance at another practice. Of course, GPs can also take on patients on a private basis in which case they will have to pay for their care. If medical care is considered “urgent” then doctors are obligated to see a patient. Urgent medical care is defined as “essential treatment which cannot reasonably be delayed until the patient returns to his or her own country” (PICUM 2001: 67).

However, the Government is currently considering changing and more clearly defining the rules on the eligibility of overseas visitors to free NHS primary medical services. The proposals are firstly, to make the rules regarding eligibility as consist as possible with the new rules determining overseas visitors eligibility to receive free NHS secondary care. Secondly, the proposed changes further envision either charging overseas visitors who are not eligible newly introduced fees or treating them as private patients, in which case there would be a private contractual arrangement between the practice and the patient. Free NHS treatment would be available though, if a patient requires treatment, which in the professional opinion of the health care clinician is immediately necessary.

Asylum seekers and refugees given leave to remain in the UK, or who are awaiting the results of an application to remain or an appeal, are entitled to register with a GP practice and receive free NHS primary medical services. If an asylum seeker loses their claim to asylum and all appeal processes have been exhausted, they will become ineligible for routine NHS primary care treatment from the date their asylum claim failed. A practice will charge the individual concerned as a private patient (with the patient’s consent) for any treatment, which it provides, unless the treatment is emergency or immediately necessary.

As is the case with secondary care, and under the proposals being put forward, it would primarily be the responsibility of the patient and not the NHS, to prove that they are eligible for free NHS primary medical services. An overseas visitor who is unable to provide proof of eligibility for free NHS primary medical services would be refused by the GP practice to be accepted as a NHS patient and instead may be offered treatment for which the patient would be charged. This proposed change places a new burden on GP practices which will now have to verify proof of residence status. A series of options are being considered which include self-certification forms asking similar questions posed to all patients receiving hospital treatment since April, 2004. Passports, identification cards and other forms of proof of legal residence could also be requested. The NHS Counter Fraud & Security Management Services (NHS CFSMS) would check a sample of the claims for free NHS primary medical services made by overseas visitors64 .

4.3. Discussion

Previous to the introduction of the new regulations, the structure and ethos of the health system facilitated undocumented migrants’ ability to ‘slip through the net’ and access free NHS treatment. Clearly, the requirement to possess a lawful status proved a barrier to undocumented migrants in principle, but the absence of systematic checks on status combined with a philosophy of providing treatment first without establishing how payment would be met, made the system largely accessible. It is difficult to argue, however, that the right to health care of this specific group was respected when their existence, circumstances and needs have not been formally addressed in legislation or NHS regulations.

The recent changes to NHS regulations which condition access to free secondary care, other than emergency services, on legal residence of a specified duration, in effect exclude undocumented migrants. Arguments against this on human rights grounds are similar to those in the German case study and rest on the issues of relevance and proportionality of discriminating against undocumented migrants on the basis of legal status with regard to accessing secondary health care. The de facto discrimination they now experience will undoubtedly have several serious effects. First, the likelihood of paying for hospital services coupled with the prospect of discovery of their irregular immigration status and subsequent denunciation, will undoubtedly deter undocumented migrants from seeking medical attention. The consequences for health status, particularly for those suffering from chronic conditions such as diabetes, asthma, heart disease and HIV/Aids are immeasurable. Specifically, these consequences are “likely to result in bodily harm, unnecessary morbidity and preventable mortality…”65 which constitutes a violation of the government’s obligation to respect the right to health of undocumented migrants. Additionally, increased marginalisation and vulnerability will inevitably be experienced by this group. Studies among ethnic minorities facing barriers to health care due to financial inability to meet costs and a lack of insurance have shown the deleterious effects this has on health and health service use. Among these are delays in seeking care, doing without medication and being diagnosed in the late stages of cancer (Becker 2004:258-9).

The situation is likely to worsen for undocumented migrants when proposed changes to primary care leading to the introduction of charges for overseas visitors and requirement of proof of legal residence status eventually become law. The British government’s revision of NHS regulations, therefore, is inconsistent with a human rights approach to health care as states have an obligation to respect the right to health “by refraining from denying or limiting equal access – on economic, physical and cultural grounds – for all persons, including …..asylum seekers and illegal immigrants, to preventative, curative and palliative health services.”66

Second, discriminating against undocumented migrants by making only emergency services accessible has the inevitable risk of forcing them to wait until they feel their condition is sufficiently serious to justify seeking care. In such a situation undocumented migrants are more likely to resort to self-medication or referring to other non-professionals within their network (PICUM 2001:37). Minor problems may in the process become more severe and, therefore, more expensive to treat. The strain on and cost of emergency care will as a consequence increase thus leading to the inefficient use of health services. Additionally, this prospect coupled with health professionals’ new task to assess the eligibility of patients to NHS care threatens to place a burden on already stretched services. Certainly, from a human rights perspective, governments should be promoting the independence of the health profession and maintaining a visible boundary between these services and immigration law enforcement (WHO 2003:22).

The lack of a human rights framework for health care provision is further reflected in problems relating to the availability and acceptability of services, two of the essential features of health services outlined in General Comment 14. As Düvell (2002:33) and PICUM (2001:69) observe, anyone receiving treatment under the NHS has to face problems such as staff shortages and waiting lists. An additional problematic area, where the right to health of undocumented migrants –and all other migrants- is likely to be compromised, is in the provision of culturally appropriate health services. Ethnocentric models of care and institutional racism have been features of the health system resulting in inequalities in health care provision (PICUM 2001:70; Scott 1998; Smaje 1995; Ahmad 1994; Samanta et al 1986). The literature on inequalities in health has repeatedly called for an investigation into the health needs and beliefs among ethnic minority groups which would provide a scientific basis for the development of culturally appropriate treatment and practices (Whitehead 1987; Department of Health 1995). This is consistent with one of the principal elements of the right to health which states “all health facilities, goods and services must be respectful of medical ethics and culturally appropriate i.e. respectful of the culture of individuals, minorities, peoples and communities.”67 Although a number of resources have been developed and initiatives undertaken to deliver more culturally relevant health care considerable work still needs to be done in this regard.

5. Conclusion

The central aim of this paper was to address the extent to which the EU member states, Germany and Britain, currently respect the right to health of undocumented migrants. The review of these countries’ policies and practices demonstrate that, by criminalizing them in the case of Germany and by discriminating against them on the basis of legal residence status in both countries, barriers have been placed in the way of undocumented migrants having equal access to preventative, curative and palliative health services. It is both a human rights and ethical issue whether residence status is relevant in matters affecting the health and possible life or death of an individual and whether compromising access to health care is both a reasonable and proportional response to individuals without authorised residence in these countries. It is further questionable whether social policy and human rights can be used punitively against undocumented migrants with the ultimate aim of deterring irregular migration.

A consequence of this approach is a violation of undocumented migrants’ fundamental rights according to international human rights law and specifically, it represents a failure of these states to respect their right to health. An inevitable result will be increasing morbidity among undocumented migrants and the perpetuation of health inequalities. Undocumented migrants may be neither members of the nation state nor citizens but they are still equal members of humankind with an equal set of rights and obligations. They have, however, become the undeserving victims of the dilemma between two reference systems governing the socio-political world - the state and humanity. Each of these systems has their corresponding sets of rules i.e. the law and moral and human rights (Düvell 2002a:86).

The blurring of the boundary between health services and immigration law enforcement in both countries is a further cause for concern. From a human rights perspective, governments should be fostering the independence of the health profession. Links between health care and immigration services may compromise the commitment of health professionals to the privacy of individuals seeking care. Confidentiality should be guaranteed for all patients regardless of residence status. The principal commitment of health professionals should be to uphold health as a human right. Any perceived link between health services and immigration will only discourage undocumented migrants from seeking care. It should be the aim of governments then, to ensure that policies and laws facilitate access to health services for all persons and this access should be clearly separated from immigration law enforcement.

A pre-condition is a renewed commitment to human rights standards for all undocumented migrants. This in turn will involve a shift in the political approach to the issue of irregular migration. As long as irregular migration and undocumented migrants are viewed only in terms of security and national interests, then public health will be neglected (Duckett 2001:19). On a political level, this commitment can be supported by combating discrimination and xenophobia as part of public policy. Additionally, ratification and implementation of the International Convention on the Protection of the Rights of All Migrant workers and Members of their Families, which recognises the vulnerable situation of undocumented migrants, should become a priority.

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* All internet resources were accessed between April 2003 and July 2004.

Endnotes

1. The Straits have been called the largest mass grave in Europe, with deaths resulting from drowning or burns brought on by soaking in a toxic mix of saltwater and gasoline - Paul Harris, A 1000 mile Trek for Better Life Ends in Death on the Beach, The Observer, April 15, 2001. Cited in a written statement submitted by Human Rights Advocates International on Migrant Workers to the Commission on Human Rights, Fifty-eighth session, E/CN.4/2002/NGO/45, January 24th 2002.

2. The numbers of international migrants have more than doubled over the last 35 years (IOM 2003a:1) and studies have shown an increasing feminization of migration as women currently account for approximately 47.5% of all migrants (United Nations NGLS 2002).

3. The 1990 UN Convention on the Protection of the Rights of All Migrants Workers and Members of their Families defines a migrant worker as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national” (Article 2).

4. These figures were cited in “Facts and Figures on International Migration. International Organisation of Migration 2003: 2 and the European Union’s Communication COM(2000)757 on a “Community Immigration Policy” page 13.

6. As Huntington (2002:5) notes the defining factor separating trafficking and smuggling is that trafficking includes the use of force, coercion or deception for the purpose of exploitation. By contrast, smuggling involves the consent of the individuals concerned. Usually, the victims of trafficking experience greater legal protection and a respect of their rights than individuals who are smuggled.

7. In the late 1950s, the German Government began recruiting foreign workers. Recruitment centres were set up by the Federal Labour Office (Bundesanstalt für Arbeit, BfA) in the Mediterranean countries. Bilateral agreements governing terms and conditions of foreign worker recruitment were created with Italy, Greece, Turkey, Morocco, Portugal, Tunisia and Yugoslavia. The number of foreign workers or ‘guest-workers’ in the FRG increased from 95,000 in 1956 to 1.3 million in 1966 and 2.6 million in 1973 (Castles and Miller 2003:72). In Britain, immigration from the New Commonwealth i.e. former British colonies in the Caribbean, the Indian sub-continent and Africa, began in 1945 and increased in the 1950s. By 1951, there were 218,000 people from the New Commonwealth in Britain and a decade later this number had risen to 541,000 (op. cit. pg 74).

8. Germany, for example, ceased its labour recruitment in November 1973, not only because of the impending ‘oil crisis’ but also because of the realisation that many of the ‘guest-workers’ were not intending to go home, rather it was clear that permanent immigration through family reunification and settlement was taking place. In Britain, family reunification was restricted by the 1971 Immigration Act. Earlier restrictions had been introduced by the 1962 Commonwealth Immigrants Act partly due to the early onset of an economic slowdown in the country.

9. The economic factors that cause or contribute to migration are well know and usually involve a desire to escape from economic desperation and seek out opportunities for a better life. Gosh (1998:35) elaborates on this by noting that poverty, unemployment and economic hardship serve as the main push factors in the first instance (survival migration) and a lack of opportunities to enhance economic welfare operate at a secondary level (opportunity seeking migration). The difference between the two types of migration are a useful analytical tool for understanding the different motivations and circumstances underlying each.

10. In European OECD countries, the number of new asylum seekers increased from 116,000 in 1981 to a peak of 695,000 in 1992. Germany experienced the biggest increase and nearly two-thirds of asylum seekers in Western Europe were in Germany (OECD 1992:132; 1995:195). In 1992, 28% of asylum seekers entering Germany were from the former Yugoslavia and 24% were from Romania (OECD 1995:89). In 1992, 4.3% of all asylum applications in Germany were accepted, in Britain under 10% were accepted and an additional 65% were granted “exceptional leave to remain” ; of Spain’s 11,708 asylum seekers in 1991, 5% were accepted (Webber 1995).

14. In March 2000, the UN published a report on replacement migration as a solution to declining and aging populations (United Nations Population Division, Replacement Migration: is it a solution to declining and ageing populations? www.un.org/esa/population/publications/migration/migration.htm ). It predicts that the EU would need net immigration levels of 701 million migrants from 1995-2050 in order to maintain the potential support ratio of the working age population to the retired-age population, in order to guarantee health and pension schemes for the elderly. However, the EU has distanced itself from replacement migration as a possible solution and in its Communication COM(2000)757 on a “Community Immigration Policy” the Commission states (pg. 27) “while increased legal immigration in itself cannot be considered in the long-term as an effective way to offset demographic changes, since migrants once settled tend to adopt the fertility patterns of the host country”. See www.europa.eu.int/comm/justice_home.

16. Part of globalisation’s impact on migration in this latter regard involves rapid technological advances which have effectively removed natural and spatial obstacles to contacts between disconnected segments of communities. Advances in transportation for example, particularly air travel and communication technology such as e-mail, satellite and fax, have facilitated easier and more affordable maintenance of different types of exchanges and ties and have reduced physical space between migrant groups (Davies 2000). The result is the progressive incorporation of people into inter-related and expanding systems of communication, exchange and production relations (Overbeek 2000). This leads to the development of sophisticated networks of participation and communication between diasporas and homeland, an important facilitating condition for migration. In migration theory, the significance of immigrant networks as bridgeheads has long been established has having a pivotal role in the migration process (Cyrus & Vogel 2002:17; Brettell 2000).

19. Paper prepared by the European Civic Forum for the conference on “Borders and Migration” organised by the Austrian League for Human Rights, Vienna, 29-30 October 2002. The paper also reports that in Britain “gangmasters” supply the large numbers of labourers needed by the fruit and vegetable sector at peak harvesting times. They fix wage levels and working conditions and are paid by farmers for this service. When the local labour supply is no longer enough they seek additional labourers, particularly in Eastern Europe where local recruiters organise an irregular labour force.

20. The policy framework for harmonisation was created by the introduction of the Schengen Agreement of 1985 and the Schengen and Dublin Conventions of 1990 (the Dublin Convention has now been incorporated into the Amsterdam Treaty. In addition, the 1992 Treaty on European Union, also known as the Maastricht Treaty, established the European Union and increased inter-governmental co-operation on issues including asylum and immigration. The two Schengen agreements allowed free movement within participating states (these now include all the EC member states with the exception of the UK, Ireland and Denmark )while strengthening external border controls. Improved police and judicial co-operation between states were agreed on as well as the introduction of common visa policies and carrier sanctions. However, the heightened control on Schengen peripheral borders has prompted criticism that legitimate asylum seekers are being turned away along with economic migrants (The EU: Towards A common Asylum Policy, World Refugee Survey 2002, www.refugees.org). The Dublin Convention effectively ended the practice of asylum seekers lodging an application in more that one EU country and established criteria for member states to determine which state would be responsible for assessing an asylum application. Refugee advocates note, however, that the Convention’s requirement that an asylum seeker make a claim in the first EU state entered has meant that the variations in states’ asylum procedures have left some asylum seekers without protection (op. cit).

21. Critics argue that this concept undermines refugee protection. It is viewed as withholding due process and lacking basic safeguards to ensure refugees will benefit from a fair asylum procedure somewhere. It has also been criticised for not distinguishing between ‘bona fide’ refugees and those with unacceptable claims. In addition, an individuals travel route in the pursuit of protection as opposed to their reasons for seeking it becomes the most important factor in deciding if protection will be granted. There is also the danger of chain deportations as many ‘safe countries’ have safe country laws or as a matter of course, deport asylum seekers to a fourth country without reviewing their case. A possible outcome for refugees is that they end being returned to the very country they are fleeing.

24. In recognition of the abuse of human rights of all types of migrants the UN Commission on Human Rights drafted resolution 1999/4 on April 27th, 1999 which called for the appointment , of a special rapporteur on the human rights of migrants to examine ways and means to overcome the obstacles existing to the full and effective protection of the human rights of this vulnerable group.

25. The Human Rights Dimension of E.U. Immigration Policy: Lessons from Member States
Human Rights Watch Statement on the Occasion of the Academy of European Law Conference: “State of Play on European Immigration and Asylum Policy: Patching Up Tampere” Trier, Germany April 25-26, 2002 www.hrw.org/europe.

26. HRW’s research revealed that the failure at both the national and regional levels to acknowledge undocumented migrants as anything more than “illegal” results in routine violations of their human rights, including arbitrary detention; gravely substandard conditions of detention; procedural violations in criminal and administrative law, and in asylum systems; racial and ethnic discrimination; police abuse; arbitrary and collective expulsions; violations of children’s and women’s rights; and horrendous abuses of migrants and asylum seekers at the hands of human traffickers, sometimes in complicity with law enforcement officials in EU member or accession states.

27. Paper prepared by the European Civic Forum for the conference on “Borders and Migration” organised by the Austrian League for Human Rights, Vienna, 29-30 October 2002.

29. Constitution of the World Health Organization, in Basic Documents, Thirty-ninth Edition, World Health Organisation, 1992.

30. There are also regional human rights treaties which are essentially concerned with the same rights but are only open to signature by states in the relevant region such as the African Charter on Human People’s Rights (1986), the American Convention on Human Rights (1992) and the European Convention on the Protection of Human Rights (1959).

31. Other treaties include The International Convention on the Elimination of all Forms of Discrimination; Convention on the Elimination of All Forms of Discrimination Against Women; The Convention on the Rights of the Child

32. Committee on Economic, Social and Cultural Rights General Comment 14, E7C.12/2000/4. The CESCR was created by the UN Economic and Social Council in 1985 and since 1988 it has prepared General Comments on the rights and provisions contained in the Covenant with a view to assisting states parties in fulfilling their reporting obligations and to provide greater interpretative clarity as to the intent, meaning and content of the Covenant. The Committee also views adoption of General Comments as a means of promoting the implementation of the Covenant.

33. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights list a number of circumstances amounting to a violations of the Covenant by a State party. These principles are reproduced in Human Rights Quarterly, Vol. 9, No. 2 1987. In 1997 the Maastricht Guidelines on Violations of Economic Social and Cultural Rights were developed as a further elaboration on the Limburg Principles as regards the nature and scope of violations and appropriate responses and remedies. See www.uu.nl/content/20-01.pdf.

34. Although as previously mentioned, the principle of progressive realisation permits States to implement the right to health at a pace commensurate to their material resources and capabilities, there are certain core obligations that States must meet regardless. These obligations, which are outlined in General Comment 14 paragraphs 43 – 45, call for at the very least, minimum essential levels of the right to health, including essential primary care. The General Comment stresses that a State party cannot, under any circumstances, justify its non-compliance with these core obligations which are all non-derogable i.e. they cannot be restricted.

36. This compares to paragraph 37 of the Limburg Principles which specifies that: Upon becoming a party to the Covenant States shall eliminate de jure discrimination by abolishing without delay any discriminatory laws, regulations and practices (including acts of omission as well as commission) affecting the enjoyment of economic, social and cultural rights.

43. A Duldung is a “temporary suspension of deportation” residence status and it is given to a migrant whose request for asylum has been refused but they cannot be returned because of political strife in their home country or because of medical reasons. Illegalised migrants who are seriously physically or mentally ill can apply foa duldung. It has to be renewed every 3 to 6 months and entitles the holder to very few rights. Individuals with a duldung have access to medical care, usually only for acute conditions, by collecting an insurance form at their local Social Welfare Centre. Braun & Würflinger (2001:3) note, however, that particularly in Berlin, clerks often refuse to hand out the form which is illegal.

45. There are not many know cases in which this article has been successfully invoked. Examples are the “taxi driver trials” in which taxi drivers transporting undocumented migrants near the Polish border were convicted, imprisoned and their driving licences taken away.

46. “Kein Mensch ist illegal” supports a political campaign for equal rights for all human beings.

47. Braun & Würflinger (2001) report the case of an African woman who had been treated in the emergency department of a university hospital for fever, infection and weakness. When she produced an incorrect insurance card the hospital administration became suspicious and called the police in order to establish her residence status. The police took her to the police station and a few hours later she was again taken to a hospital emergency department, this time with a broken arm. The arm was plastered and an operation planned for the following day. However, the woman left before the operation because she feared being deported immediately afterwards.

48. This is increased to up to 12 weeks in the event of premature birth or the birth of twins.

49. If a pregnant woman does not apply for a legal residence status and delivers her child at home or as a private patient in a hospital, the child will be born into illegality as it is impossible to get a birth certificate since the mother is unregistered. Without a birth certificate, the mother cannot prove parenthood and the child could be taken away from her, for example in the case of deportation.

54. Many gang-masters place advertisements in newspapers in eastern Europe for workers and since visas are not required from most eastern European countries, the migrants are told to identify themselves as tourists on arrival. Tourist visas do not allow them to work.

55. The NHS (Charges to Overseas Visitors) (Amendment) Regulations 2004 (SI No 614) –
amended the baseline Regulations to include the changes to the Regulations designed to tighten
loopholes open to abuse and modernise the charging regime.

58. John Hutton Minister of State for Health in Implementing the Overseas Visitors Hospital Charging Regulations. Guidance for NHS Trusts in England. Department of Health, April 2004, www.dh.gov.uk/PublicationsandStatistics page iii.

59. These guidelines were stated in a 1999 government circular about the eligibility of “overseas visitors” to receive free health care (PICUM 2001:65)

60. Although the case being considered was concerned with the meaning of ordinary residence in the context of the Education Acts the decision is generally recognised as having a wider application. It is, therefore, taken into account when deciding if a person can be considered ordinarily resident for the purposes of the NHS Act 1977 and the overseas visitors charging Regulations.

61. In clarification of this position, regulations do state that immediately necessary should not be construed simply as meaning that the treatment is clinically appropriate, as there may be some room for discretion about the extent of treatment and the time at which it is given, in some cases allowing the visitor time to return home for treatment rather than incurring NHS charges.

62. Further details of other categories of individuals exempt from charges are listed in Implementing the Overseas Visitors Hospital Charging Regulations. Guidance for NHS Trusts in England. Department of Health, April 2004, www.dh.gov.uk/PublicationsandStatistics

64. The proposed new rules would apply to those overseas visitors who seek to access free NHS primary medical services after a given date in the future. However, those overseas visitors who currently receive free NHS primary medical services as registered patients will continue to receive them from their existing practice unless or until their temporary resident registration expires or they seek to change their registered practice. At that point the new rules would apply.